This is an action to enforce specific performance of an alleged contract. To be more specific, it is a suit to fasten a trust upon all the real and personal property of two decedents, by virtue of an alleged oral contract to devise and bequeath it by will. The controversy is over the estates of John W. Napier and Sarah J. Napier, his wife. In 1923, John W. Napier died intestate, leaving surviving him his widow, Sarah J. Napier, as his sole heir at law. In 1926, Sarah J. Napier died leaving a will whereby she devised and bequeathed her property to persons other than the plaintiff. Plaintiff, who had formerly lived as one of the family for nearly five years in the home of the Napiers, then commenced this suit for specific performance of an alleged contract or agreement which she say was made between her mother aud John W. Napier and Sarah J. Napier, whereby the latter, the Napiers, agreed to devise to her by will the property in question, in consideration that she, the plaintiff, would go and live with the Napiers in the capacity of an adopted child. A more minute history of the cotroversy is as follows:
Viola McIntee, the mother of plaintiff, obtained a divorce from her husband in a district court of the Oklahoma Territory in 1905, upon the grounds of extreme cruelty. She had four children, their ages ranging from five to nine years. The custody of these children, one of which is the plaintiff in this action, was awarded to her. She later married a Dr. Burnett, a brother of Sarah J. Napier and a cousin of John W. Napier, whose estates are the subject-matter of this suit. At Christmas, in the year of 1907, one of these children, Hattie McIntee, the plaintiff in this action, went to live in the home of the Napiers at Iola, Kan. She took up her permanent abode with them. At that time she was 13 years of ago. The Napiers later moved to Pawhuska in this state, where the husband, John W. Napier, engaged in the hardware business. In business he was a success. Plaintiff was treated by the Napiers, which is not unusual under Such circumstances, like a member of their family. She was well cared for, and was given all the educational and social advantages which could be obtained in the communities in which they lived. The Napiers, especially John W. Napier, was very fond of her. When he was away from home, or when she was away, he would write her affectionate notes or letters, and address her as "Miss Hattie Napier," instead of "Miss Hattie McIntee." However, when she married, she did so under the name of Hattie McIntee. John W. Napier, as the foster father, gave his consent to the marriage and signed the necessary waiver, she being under the age of 18 years. Plaintiff lived in the Napier home, or with the Napiers, for nearly five years, until the year of 1912, at which time she married, and with her husband moved to Muskogee. She, however, was a constant or occasional visitor in the home of the Napiers thereafter, or until their death. At the time Hattie (the plaintiff) went to live with the Napiers. Mr. Napier was about 55 years of age, and his wife was about 50 years of age. John W. Napier died eleven years after plaintiff married and took up her home elsewhere, and Sarah J. Napier died 13 years after plaintiff married and ceased to live with them. John W. Napier died intestate, *Page 106 and in the administration of his estate plaintiff did not claim any right to the property of this decedent on the theory that she was an heir at law by adoption. In fact, it is not the theory of plaintiff that she has any rights as an heir at law, by virtue of any parol agreement to adopt; that is, by any agreement to take her into the family and treat her as if she were a natural child; but rests her case wholly and solely upon the proposition that she is entitled to all the estate of both John W. Napier and Sarah J. Napier upon the grounds that they promised to make her their sole beneficary under their wills, and having failed to so do, she seeks specific performance, or what in equity amounts to specific performance of the agreement.
Sometime prior to the death of Sarah J. Napier, she executed a will devising and bequeathing to certain persons all her property, apparently by reason of their loyalty and fidelity, and the assistance given her and her husband during the last years of their life. As throwing some light on the controversy, the will of Sarah J. Napier contains the following provisions:
"Third: I give and devise to Lola M. Grant (certain real property, describing it, which property is situated in Osage county) in fee forever.
"Fourth: On account of my friendship and respect for Charles M. Robinson, of Pawhuska, Okla., who was always kind to John W. Napier, my deceased husband, and who has ever been kind to me and considerate of my personal and financial welfare, I hereby give, devise, and bequeath to him, as a matter of appreciation (certain real and personal property).
"Fifth: After the disposition of my property as hereinbefore set forth, I give and devise to Maude Grant (certain real and personal property) said property to be used, controlled, and disposed of by her when necessary for the support and maintenance of herself and the education of Opal Marie, John William, and Charles, Jr., Grant, her said children. This Provision is made for said Maude Grant and her said children because of our long intimate and pleasant association with her husband, Charles Grant, who we have raised from the time he was a boy five years of age."
This will was entered, to probate, and distribution thereunder was made to the beneficiaries.
The Napiers had no children of their own. Their only child, it seems, died before it grew to manhood or womanhood.
The foregoing statement constitutes the undisputed facts of this controversy.
The contract or agreement by which plaintiff seeks to charge the estates of J.W. and Sarah J. Napier, was attempted to be established by the testimony of Mrs. McIntee Burnett, the mother of plaintiff, and by Dr. Burnett, the stepfather of plaintiff. In substance, they testified that, in 1907, while the Burnet-McIntee family were living in Clinton, Okla. Terr., John W. and Sarah J. Napier made an extended visit in their home, and while there they became somewhat infatuated with plaintiff and her sister. According to this testimony Mrs. Napier expressed her emotions in tears and wanted to take one of the girls home as "their own little girl, treat her as her own daughter, and give her everything they had at their death, as they had no one to leave their property to." Hattie (plaintiff) was selected as the one to go. Her mother testified that she would not have given her consent to plaintiff leaving home and taking up her permanent abode with the Napiers had it not been for the promise to make her the sole beneficiary of their estates at their death. Plaintiff testified essentially to the same things, but, as she was an incompetent witness under the statute, section 588, Comp. Stat. 1921, and under the general rules of evidence, her testimony cannot be considered. The husband of plaintiff's sister, a Mr. Lemp, testified that while he and his wife were visiting the Napiers, John W. Napier stated that he intended to give Hattie (the plaintiff) all of his estate at his death. This, however, was random conversation, and is of but little, if any, value tending to establish a contract of this nature.
The defendants introduced several witnesses having intimate knowledge of the affairs of the Napiers, who testified that they never heard of any arrangement whereby the plaintiff was to, be given all or any portion of the property of the Napiers; that the Napiers never, directly or indirectly, so far as they knew, made any statement or remark tending to leave such impression.
After a lengthy hearing upon the merits, the trial court rendered judgment in favor of plaintiff, decreeing title in her to all the property of which John W. Napier anid Sarah J. Napier died seized, save and except that portion which was necessary for payment of their debts, and that part of the estate of John W. Napier which was necessarily spent by his widow after his death.
The cause is brought here to this court for review upon numerous assignments of error. On account of the views which we have reached, after a careful consideration of this *Page 107 case, it is only necessary to discuss one question, namely, whether the contract was established by sufficient satisfactory proof; that is, established to that degree of moral certainty to warrant a court in enforcing a parol agreement to devise property, and be enforced after the death of the person whose estate is sought to be bound.
It is definitely settled that it is competent for a person to make a binding oral agreement to dispose of his property by last will and testament. The fundamental weakness in a proceeding to enforce such an agreement lies in the fact that it is on or near the borderland which offends the policies of the law. Such agreements, though sometimes enforced, must be established by the clearest and most satisfactory evidence. In addition to the required quantum and quality of testimony, the agreemen will never be enforced unless it is (1) clear, (2) definite and certain, (3) equitable and just, (4) mutual in its obligations, and (5) after a strict performance by the promisee of all its terms. As our decision rests upon the insufficiency of the testimony, these last five elements will be passed.
Specific performance of a contract falls solely under the jurisdiction of equity. There is a class of contracts, where the contract is in writing, is certain in its terms, and executed for a valuable consideration, is fair and just in all its provisions and capable of being enforced without hardship to either party, in which it becomes the duty of a court of equity to decree specific performance, just as it becomes the duty of a court of law to award damages for breach of contract; but in the class of contracts under which the one in the present case falls, the right of performance is not absolute, but rests entirely in the sound judicial discretion of the courts. Perhaps the clearest satement extant on the subject and applicable to a state of facts very similar to the facts in the present case, is found in the body of tile opinion in the recent case of Pancoast, Adm'r, v. Eldridge, 134 Okla. 247,273 P. 255, in which it is said:
"Mr. Story, in his Equity Jurisprudence, section 1016A, says: 'The enforcement of contracts of the character here involved is an exception which courts of equity have ingrafted upon the statute of frauds. The exception is one that is sparingly exercised, and rightfully so. The very conscience of the court must be touched by the facts of the particular case before the exception to the will be called into play.' "
The opinion in the above case by Justice Hefner settles this controversy in favor of the plaintiff in error in this action. In this connection, it must be understood that plaintiff's contract was established solely by interested witnesses, her mother, her step-father, and her brother-in-law, her sister's husband. No disinterested witness furnished any testimony favorable to the plaintiff in this action. However, in cases of this nature, even though disinterested witnesses testify on behalf of persons seeking specific performance, yet the question is one to be exercised within the discretion of the court, primarily the trial court, and this court on appeal. Because a certain number of witnesses, interested, or disinterested, have testified regarding an oral contract to devise the whole or part of an estate, especially after the promisor's death, does not entitle the Plaintiff, as a matter of right, to a decree of specific performance. The universal rule is stated in the first paragraph of the Pancoast Case, as follows:
"Before a court of equity will specifically enforce an oral contract to devise property, the proof of the contract must be so cogent, clear, and forcible as to leave, no reasonable doubt as to its terms and character."
On the point, the court, in its brief and comprehensive opinion in that case, said:
"The rule as to the weight to be given evidence in such cases is well stated in 36 Cyc. 692, wherein it is said: 'The rules as to the weight of evidence are applied with the utmost strictness to oral contracts to devise the whole or part of an estate. Such contracts are viewed with suspicion by the courts, and must be established by the clearest and most convincing evidence. In these, as in other contracts, one party to which is deceased, the defendant heirs or devisees are under the disadvantage that they are deprived by his death of their most important testimony. In such contracts, the proof, in addition to inferences from the situation, circumstances, and relations of the parties, must generally consist of evidence of verbal declarations made by the deceased to third persons. This is a kind of evidence which the law recognizes as weak and unsatisfactory, and to be scrutinized with care.' Again, in the case of Asbury v. Hicklin, 181 Mo. 658, 81 S.W. 390, this language appears: 'A court of equity in this state will specifically enforce an oral contract to make a will in a particular manner, where a valuable consideration has been received for the promise, and a fraud would be perpetrated upon the promisee or beneficiary unless the contract be performed. But the proof of such a contract must be so cogent, clear and forcible as to leave no reasonable doubt in the mind of the chancellor as to its terms and character.' "
Among the correspondence of John W. *Page 108 Napier and Sarah J. Napier to plaintiff and Plaintiff's mother, we submit to the reader the following excerpts:
(Letter from John W. Napier to plaintiff): "* * *fur your old oncle has the dow and is making more, and if you conduct your self rite, as I want you too, you can have more some day."
(Letter from Sarah J. Napier to mother of plaintiff): "I can tell you, and sow can Hattie, that wee get along just fine, and she dont have to wonder where she will get her next dress. Nor she wont as long as J.W. lives, and I think I will have something fur the kid left if she mines J. W."
(Excerpt from letter of J.W. Napier to plaintiff): "* * * when you air 35 years old, then hit will bee plenty of time too let some sun of a GGG abuse you, fur if he ever abused you while I live he would go to — (perdition) with his boots on: * * *"
These letters indicate that the intention to devise the property, or a portion of it, was only conditional.
The last letter, in addition to the rather extravagant statements, seems to leave the impression that the promisor, John W. Napier, expected the plaintiff to live with them for 17 years longer than she actually did. This particular fact, together with the absence of any positive evidence of the length of time which plaintiff was to make her home with the Napiers, raises the question of the definite and certain character of the alleged contract; but, as previously stated, our decision is in no wise based upon that principle, and therefore no discussion will be devoted to it.
We do not assume that the plaintiff's witnesses testified falsely pertaining to any essential matter or any matter involved in this controversy. We do not know. What we do say is that public policy and the very proprieties of the law preclude plaintiff from a recovery in this action upon the testimony introduced. To permit plaintiff to prevail in this case would render insecure and highly uncertain the ownership of every valuable estate of a decedent. It would establish a precedent whereby a group of interested persons could testify to a parol agreement made with a person whose lips are frozen in death, and thereby establish a prima facie case, and use courts of equity themselves to assist in perpetrating a monstrous fraud. Such is not the law, and it never will be. It would be productive of much grave evil without any corresponding good. On this point, the highest court of the state of New York, in the case of Hamlin v. Stevens, 69 N.E. 118, made such a clear and sane discussion of the matter that it is worthy of reproduction in this opinion. In that case it was said:
"Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them and in enforcing them when established, by specific performance. Such contracts are easily fabricated and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents. In Shakespear v. Markham, 72 N.Y. 400 -403, this court declared that: 'Contracts claimed to have been entered into with aged or infirm persons to be enforced after death to the detriment and disinheriting of lawful heirs, who otherwise would be entitled to their estates, are properly regarded with grave suspicion by courts of justice and should be closely scrutinized and only allowed to stand when established by the strongest evidence. * * *' We are of the opinion that no view of the evidence in the case before us would warrant the conclusion that the alleged contract was made. Assuming that the trial judge believed that the appellant and his mother intended to tell the truth, still owing to their deep interest, it would be unsafe to base a finding on their testimony when it may be followed by such grave consequences . Such contracts are dangerous. They threaten the security of estates and throw doubt upon the power of a man to do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation with all the dangers which, as experience shows, surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true under the circumstances and with the results pointed out. Such contracts should be in writing and the writing should be produced; or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnessses. Unless they are established clearly by satisfactory proofs and are equitable, specific performance should not be decreed. We wish to be emphatic upon the subject, for we are impressed with the danger and aim to protect the community from the spoliaition of dend men's estates by proof of such contracts through parol evidence given by interested witnesses. * * *"
Another case directly in point is Wall v. McEnnery's Estate,105 Wn. 445, 178 P. 631. That case quotes at length from the New York ease Hamlin v. Stevens, supra. Another leading case is Holmes v. Connable, 111 Iowa, 298, 82 N.W. 780. Other cases *Page 109 in point are Pantel v. Blower, 104 Kan. 18, 178 P. 241; Matthews v. Tobias, 126 Or. 358, 268 P. 988; Popejoy v. Boynton, 112 Or. 646, 229 P. 370.
Plaintiffs in error also urge with considerable force that it would be inequitable to impress the property of Samb J. Napier with a trust in favor of plaintiff as against the beneficiaries under her will, which beneficiaries looked after and cared for these old people in the evening and twilight of life, but we do not deem it necessary to pass upon this question. It, however, is an accepted rule that, before specific performance will be awarded in cases of this nature, such transactions must not be inequitable; that is, they must, in every particular, be fair and just. The sooner that parties who seek to enforce contracts of this nature reduce their agreements to writing, and then draft them in a definite form, the sooner the courts will be warranted in enforcing them. Until this is done, the very safety of property rights and the sacredness with which the law must be administered in regard to dead men's estates demand that the courts pursue the straight and well-beaten paths, and enforce such agreements only when every essential element present, one of which is that the proof must be conclusive.
Upon the grounds herein discussed, the judgment of the trial court is hereby reversed, with directions to render judgment for defendants.
LEACH, REID, HERR, and FOSTER, Commissioners, concur. DIFFENDAFFER, Commissioner, dissents.
Note. — See under (2) 25 R. C. L. p. 310; 25 R. C. L. p. 311.